Constitution Day and Justice Thomas

Today is the 225th anniversary of the signing of the proposed Constitution of the United States in Philadelphia. (It didn't actually become the Constitution until ratified, of course.) Robert Barnes has this article in the WaPo on Justice Thomas's appearance at Yale Law School yesterday.

The headline above the article (probably written by an editor, not Barnes) reads, "Thomas concedes that 'we the people' didn't include blacks."

Concedes? As I have said here before, the second thing we should do is kill all the headline writers. Where does that word "concedes" come from?

The word "concedes" implies that one is admitting a point that weighs against one's own argument or yielding on a point previously disputed.

I suspect the headline writer thinks that the fact that the original Constitution was a compromise that permitted slavery is somehow a point against the jurisprudence of original understanding, which Justice Thomas supports. It is not. Politics is the art of the possible, and the original Constitution necessarily had to include many compromises in order to achieve ratification. This was one of them, and it took a Civil War and three amendments to fix it, several generations later. But it was fixed by amendment and not by judicial activism, the latter being part of the problem rather than part of the solution.

There is no concession here.

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Another reason that Justice Thomas likely never "conceded" that "We the People" did not include blacks is that - from an originalist perspective - such a reading of the Preamble is wrong. Unfortunately, a general acceptance of black exclusion shows how far the "progressive" PC police have come in having their myths of evil "AmeriKa" accepted as fact.

At the time of the Constitution's drafting, "the People" likely meant "free persons" within each state (as exemplified by the directive in Art. I, sec. 2, cl. 3 that taxes and representation in the House of Representatives be apportioned based in part on "the whole number of free Persons"). Even if "the People" included only persons eligible to vote in each state (a more restrictive meaning that flies in the face of the use of "the People" in the essentially contemporaneous Bill of Rights), it would still be wrong to infer that the Framers intended to exclude blacks from "the People."

In some states at the time of the Constitution's drafting, blacks were - by law - considered free persons and could even vote (the proper "concession" here would be that it must've been a fairly limited number of blacks). As Justice McClean noted in his dissent in Dred Scott, "while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised, the rights of suffrage when the Constitution was adopted."

Further, the Framers clearly contemplated that - over time - "the People" would be an expanding class, and not due simply to increasing birth rates of then-free persons and continued European migration. Looking again at the procedure for determining representation in the House in Art. I, sec. 2, cl. 3, it is clear that the Framers built an incentive into the Constitution designed to bring about the end of slavery and a concomitant increase in "the People" through the inclusion of blacks. By counting "other persons" as only 3/5 of "free persons," the Framers put slave-holding states on notice that slavery's continuation would ultimately result in a great diminution of slave states' representation at the federal level. But, if they freed their slaves, making them "free persons" counted as a "whole" rather than 3/5 (and, thus, part of "the People"), slave states would enjoy a increased representation in, and corresponding influence on, the federal government.

In short, it is a historical distortion to read the Preamble as excluding blacks. In fact, the The Framers never mentioned any specific race or skin color when referencing "We the People." And, other parts of the Constitution show that the Framers viewed "the People" as either "free persons," or at least persons eligible to vote in the separate states at the time of the founding. Notably, both categories included blacks.